Open Commonwealth v. Malden, City of - IT Department (SPR 20241795)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2024 SPR24/1795 Anthony Rodrigues Director City of Malden – IT Department 215 Pleasant Street Malden, MA 02148 Dear Mr. Rodrigues: I have received the petition of OpenCommonwealth (“requestor”) appealing the response of the City of Malden – IT Department (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 30, 2024, the requestor sought, “an export/listing of all email accounts for the @cityofmalden.org domain where the account is for a Malden Public Schools employee.” The City responded on June 4, 2024, providing records. Unsatisfied with the City’s response, the requestor petitioned this office and this case, SPR24/1795, was opened as a result. While this appeal was pending, the City provided a supplemental response on June 20, 2024. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Anthony Rodrigues SPR24/1795 Page 2 July 2, 2024 If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s June 4th Response In its June 4, 2024 response, the City provided records. Subsequent to the opening of this appeal, on June 20, 2024, the City provided additional records and stated, “[p]lease find attached a list of ‘Active’ employees who maintain a Cityofmalden.org and Maldenps.org email address per our IT department.” Current Appeal In the appeal petition, the requestor states, “[t]he City has again failed to provide all responsive records.” In response to the City’s June 20th email, the requestor stated, “[t]he request was not for ‘Active’ employees. The request was/is verbatim: ‘Please provide an export/listing of all email accounts for the @cityofmalden.org domain where the account is for a Malden Public Schools employee…’ OpenCommonwealth has emails from accounts which are not reported, have not been reported and are absolutely responsive to this request.” Possession, Custody, Control Based on the requestor’s claim above, it is unclear whether the City possesses additional records responsive to the request. If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Anthony Rodrigues SPR24/1795 Page 3 July 2, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency